Opinion
November 16, 1949.
Appeal from Supreme Court.
The verdict of the jury was in defendant's favor. On November 12, 1946, plaintiff's intestate, her husband, was operating his automobile in a westerly direction toward Richville. The highway crosses the defendant's railroad at grade. The intersection of the road and the railroad is known as Bigelow crossing. Defendant's train, consisting of forty-eight cars and a caboose, was proceeding northerly toward Canton. A collision occurred between the automobile and the train, in which plaintiff's intestate lost his life. The most important question in this case is whether or not defendant gave adequate and timely warning of the approach of its train. There is testimony by disinterested witnesses on the part of plaintiff that no such warning was given. True it is that there is testimony to the contrary on the part of the defendant. This testimony comes principally from the mouths of interested witnesses. Without discussing the evidence in detail we are of the opinion that the weight of the credible evidence supports plaintiff's view. In the interests of justice the judgment appealed from is reversed on the law and facts and a new trial granted, with costs to plaintiff to abide the event.
I dissent. On conflicting testimony the jury resolved the issues in favor of the defendant. There was ample evidence to support the verdict. The action of the trial court in denying plaintiff's motion to exclude all witnesses from the courtroom except the one under examination did not constitute reversible error. The exclusion was a matter resting in the discretion of the court, and the record does not indicate that this discretion was abused. The judgment should be affirmed, without costs.